S056399, Opinion — State v. Serrano

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Argued and submitted January 14, order of circuit court affirmed June 25, 2009

STATE OF OREGON,
Plaintiff-Appellant,
v.
RICARDO SERRANO,
Defendant-Respondent.
(CC C063227CR; SC S056399)
210 P3d 892

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CJS, Witnesses § 270.

En Banc

On appeal from an order of the Washington County
Circuit Court under ORS 138.060(2)(a).

Steven L. Price, Judge.

Paul L. Smith, Assistant Attorney-in-Charge, Criminal
Appeals, argued the cause for plaintiff-appellant. With him
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General, Salem.

Joshua B. Crowther, Senior Deputy Public Defender,
argued the cause for defendant-respondent. With him on the
brief was Peter Gartlan, Chief Defender, Appellate Division,
Office of Public Defense Services, Salem.

DE MUNIZ, C. J.

The order of the circuit court is affirmed.

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# DE MUNIZ, C. J.

This case concerns the meaning of several sections of
Oregon Evidence Code (OEC) 505, which governs marital
privileges in Oregon. Defendant was charged with multiple
counts of aggravated murder, involving three victims. Defen-
dant's wife agreed to testify for the state regarding certain
communications between defendant and wife that had
occurred both before and after the murders. Although it is not
entirely clear from the record, it appears that the state
sought to offer wife's testimony regarding those communica-
tions as some evidence that defendant had had a motive to
commit the murders and then had attempted to conceal his
involvement in them. Before trial, defendant filed a motion
in limine, in which he asserted the marital communications
privilege as to those communications. The trial court granted
defendant's motion and excluded the communications now at
issue. The state filed this expedited appeal pursuant to ORS
138.060(2)(a).1 For the reasons that follow, we affirm.

## I. FACTS AND PROCEDURAL BACKGROUND

For purposes of this appeal, the undisputed facts are
taken from the record and the parties' briefs. Defendant is
charged with the aggravated murders of Melody Dang and
her two young sons. At the time of the murders, defendant's
wife (wife) was having an affair with Dang's long-time boy-
friend, Nguyen, and was pregnant with Nguyen's child.

By late summer 2006, wife decided that she wanted
to leave defendant and dissolve their marriage. She shared
her plans to leave defendant with a "few friends," her mother
and two sisters, and three or four coworkers. Wife also dis-
cussed with at least one of her sisters how she should tell
defendant. On September 1, 2006, wife moved out of the fam-
ily home, took the couple's five children with her, and moved
in with one of her sisters. Wife left defendant a page-long
note, in which she told him that she was leaving him and
moving out of the house.

1 Under ORS 138.060(2)(a), when the defendant is charged with murder or
aggravated murder and a trial court enters a pretrial order suppressing evidence,
the state may appeal that order directly to this court.

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On the night that wife moved out, defendant called
wife on her cell phone. At that time, wife was in her sister's
living room. Wife's sister was in the room while wife spoke
with defendant; however, she heard only wife's side of the
conversation. Wife reiterated that she wanted a divorce. Wife
testified that, during the telephone call, defendant expressed
a desire to reconcile with her.

Approximately one week later, wife left another note
for defendant, informing him that she had had an affair. By
the time that wife left the second note, she already had told
her mother and sisters about the affair and had talked with
them about how she should tell defendant.

Defendant called wife again after reading the second
note. During that conversation, they discussed her affair. In
another conversation that evening, she also told defendant,
for the first time, that she was pregnant and that defendant
probably was not the child's father. According to wife, defen-
dant responded that her pregnancy did not matter, that she
should not tell anyone, and that he would raise the child as
his own. However, wife told defendant that she already had
spoken to the baby's father about the baby.2 Wife's sister also
was present during that call, but again heard only wife's side
of the conversation.

At some point after wife moved out of the family
home, defendant called Brandi Preciado, with whom he had
had an intermittent intimate relationship, and told her that
wife had moved out. Preciado and defendant later met in per-
son. Defendant told Preciado that he and wife had split up
and that wife had taken the children and moved in with her
sister.

After defendant's second telephone call with wife,
but before November 2, 2006, wife moved back into the fam-
ily home with defendant, because her sister did not have
enough space for wife and the children. Wife told defendant
that she did not want to reconcile with him and that the liv-
ing arrangement would continue only until she could find her
own place.

2 It is unclear whether, in that communication, wife identified the baby's
father as Nguyen.

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The state contends that the murders occurred on the
evening of November 2, 2006. Nguyen, who worked the night
shift, discovered the bodies of Dang and their two sons the
following morning when he returned home. Nguyen later
reported to the police that the only property missing from the
house was a laptop computer. That same morning, defendant
called wife at 5:35 a.m. as she was coming home from work.
Defendant worked a day shift and typically watched the chil-
dren at home in the evening while wife worked a night shift.
He routinely called her to make sure that she was on her way
home from work before he left for work in the morning. Based
on their conversation that morning, wife thought that defen-
dant was "[o]n his way to work."

Wife arrived home approximately ten minutes after
the telephone call and noticed that one of defendant's trucks
was not in the driveway. She called him several times to ask
him about the truck, but he did not answer his phone. Defen-
dant called wife back approximately 30 minutes later and
explained that he had not been able to answer his phone
because it had been left in his jacket, which was in the back
seat. She asked defendant about the missing truck, and
defendant explained that it had broken down the night before
when he went to the store and that it was parked a few blocks
away from the house. Before ending the call, he told her that
he was walking into work and had to hang up.

Approximately one week after the murders, defen-
dant told wife that he had lost his cell phone while shopping.
That conversation took place while they were at home with
their children. Then, in mid-November 2006, defendant told
wife that he knew someone who was selling a laptop com-
puter and asked her if she wanted to buy it. Wife told him
that she did not want the computer.

On November 28, 2006, Washington County
Sheriff's Detective Hays interviewed defendant as a suspect
in the murders. During the interview, defendant told Hays
that he had lost his cell phone approximately two weeks ear-
lier near the local WinCo store. Defendant also told Hays that
his truck was parked a few blocks away from his house
because it had broken down. Police arrested defendant on
November 29, and he was later charged with ten counts of

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aggravated murder. Wife moved out of the family home on
the same day.

Preciado remained in contact with defendant after
he was arrested, and, at some point, defendant told her that
wife was pregnant. Preciado testified that she initially
thought that wife was pregnant with defendant's baby. How-
ever, she later discovered that defendant was not the father.
When she confronted defendant about it, he eventually told
Preciado that he did not believe that the baby was his.

Wife agreed to testify for the state about certain
communications that she had had with defendant before and
after the murders. Before defendant's scheduled trial, he
filed a motion in limine, asserting the marital communica-
tions privilege set out in OEC 505(2) as to those communica-
tions. Specifically, defendant argued that the marital com-
munications privilege required the court to exclude, among
other things, the following evidence from defendant's trial:
(1) the note that wife had left for defendant, telling him about
her affair; (2) the conversation between defendant and wife
in which they had discussed her affair and in which she had
told him that she had become pregnant as a result of the
affair; and (3) the November 3, 2006, conversation in which
defendant had told wife that he was on his way to work.3
Defendant contended that OEC 505(2) applied because those
communications had occurred between defendant and wife
outside the presence of others and had involved intimate
matters. Defendant also asserted that no evidence suggested
that either spouse had intended those communications to be
disclosed to others or that defendant had waived his privilege
as to those communications.

The state opposed defendant's motion. The state con-
tended that the communicating spouse's intent governed the
confidentiality of a marital communication and that the com-
munications at issue were not protected by the marital com-
munications privilege because neither defendant nor wife

3 Defendant's motion initially identified the communications as we have
described. However, the evidence at the hearing established that wife had written
two notes on different occasions and established the full extent of the content of the
various communications that we analyze below.

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had intended their statements to be "confidential communi-
cations" within the meaning of OEC 505. The state further
asserted that, even if defendant and wife initially had
intended their communications to be confidential, they later
waived the privilege because the purpose of the privilege-
preserving marital harmony-was no longer achieved, given
that defendant and wife's marriage was in a state of disre-
pair. Relatedly, the state contended that communications
regarding the dissolution of a marriage are not privileged.
The state also argued that defendant would "get a windfall"
by asserting the privilege based on a marriage that was
barely intact.

The trial court held two hearings on defendant's
motion. Wife, Detective Hays, and Preciado testified. In a
July 2008 letter opinion, the court granted in part and denied
in part defendant's motion. As an initial matter, the trial
court rejected the state's argument that communications
regarding the dissolution of a marriage were not confidential.
The trial court concluded that the notes that wife had left for
defendant and that defendant's side of the subsequent tele-
phone conversations between defendant and wife were confi-
dential communications falling within the scope of the
marital communications privilege. The trial court further
concluded, however, that wife's side of those conversations-
which her sister had overheard-were not confidential.
Finally, the trial court concluded that the November 3, 2006,
telephone conversations between defendant and wife, in
which defendant had stated that he was on his way to work
and that his truck had broken down, were confidential and
within the scope of the privilege. The trial court did not spe-
cifically address defendant's later conversations with wife
concerning the loss of his cell phone or the purchase of a lap-
top computer. Rather, the trial court concluded that "[a]ll
other communications between the defendant and his wife
\* \* \* are privileged and not admissible[.]" The trial court did
not address defendant's communications with Detective
Hays. The court issued an omnibus order in August 2008,
which reflected its earlier letter opinion. The state timely
appealed pursuant to ORS 138.060(2)(a).

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## II. DISCUSSION

### A. Background - OEC 505 and OEC 511

The state's appeal requires that we interpret several
statutory provisions involving the marital privileges set out
in OEC 505, specifically, OEC 505(1)(a) and (b), which define
the terms "confidential communication" and "marriage";
OEC 505(2), which establishes the marital communications
privilege; and OEC 505(4), which sets out exceptions to the
marital privileges. We also must consider OEC 511, which
governs waiver of privileges by voluntary disclosure. We first
examine the statutory text and context when interpreting a
statute. See State v. Gaines, 346 Or 160, 171, 206 P3d 1042
(2009) (the first step for interpreting a statute "remains an
examination of text and context").

We begin with a brief overview of the marital privi-
leges. Two marital privileges exist in Oregon: the marital
communications privilege, which is governed by OEC 505(2),
and the testimonial privilege, which is governed by OEC
505(3).4 OEC 505(2) provides:

"In any civil or criminal action, a spouse has a privilege
to refuse to disclose and to prevent the other spouse from
disclosing any confidential communication made by one
spouse to the other during the marriage. The privilege cre-
ated by this subsection may be claimed by either spouse.
The authority of the spouse to claim the privilege and the
claiming of the privilege is presumed in the absence of evi-
dence to the contrary."

OEC 505(3) provides:

"In any criminal proceeding, neither spouse, during the
marriage, shall be examined adversely against the other as
to any other matter occurring during the marriage unless
the spouse called as a witness consents to testify."

The marital privileges are distinguishable from each other
in several ways. Laird C. Kirkpatrick, Oregon Evidence

4 The testimonial privilege is sometimes referred to as the privilege against
adverse spousal testimony.

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§ 505.03[1], 366 (5th ed 2007). In particular, the marital com-
munications privilege applies to only confidential communi-
cations between the spouses made during the marriage,
while the testimonial privilege applies to nonconfidential
communications and observations made during the mar-
riage. Id. Both spouses hold the marital communications
privilege, and both may assert that privilege during, and
after, the marriage. Id. By contrast, only the spouse called to
testify holds the testimonial privilege, and that privilege may
be asserted only during the marriage. Id. Finally, the marital
communications privilege may be asserted in civil and crim-
inal cases, but the testimonial privilege may be asserted in
criminal cases alone. Id.

Both the marital communications privilege and the
testimonial privilege may be waived. OEC 511. OEC 511 gov-
erns waiver by voluntary disclosure of several kinds of privi-
lege, including the marital privileges, and provides, in part:

"[a] person upon whom [OEC 503 to 514] confer a privilege
against disclosure of the confidential matter or communi-
cation waives the privilege if the person * * * voluntarily
discloses or consents to disclosure of any significant part of
the matter or communication."

In this case, the testimonial privilege set out in OEC
505(3) is not at issue, because wife waived it when she vol-
untarily consented to testify for the state. The question is
whether the trial court properly excluded wife's testimony
about the contested communications based on the marital
communications privilege set out in OEC 505(2). Having set
out the framework for the marital privileges, we turn now to
the parties' arguments.

### B. Statements Directed at Marital Dissolution

We begin by addressing the state's argument that
communications regarding the dissolution of a marriage
should not be privileged because they do not further the his-
torical purpose of the marital privileges, which is to preserve
marriages. See State v. Luper, 49 Or 605, 607-08, 91 P 444
(1907) (purpose of privilege is "to secure domestic happiness
and tranquility"). In light of that purpose, the state urges this

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court to exclude categorically from the marital communica-
tions privilege purportedly confidential communications that
are directed at the dissolution of the marriage. The state spe-
cifically contends that wife's communications to defendant
before the murders should be admissible because their
admission would not facilitate the historical function of the
marital communications privilege, given that wife was
intending to dissolve the marriage when she made the com-
munications to defendant.

The issue is easily resolved by examining the text of
OEC 505. As noted, OEC 505(2) provides that "a spouse has a
privilege to refuse to disclose and to prevent the other spouse
from disclosing any confidential communication made by one
spouse to the other during the marriage." (Emphases added.)
For the purposes of OEC 505(2), "confidential communica-
tion" and "marriage" are statutorily defined terms. OEC
505(1)(a), discussed further below, defines "confidential com-
munication" as "a communication by a spouse to the other
spouse and not intended to be disclosed to any other person."
OEC 505(1)(b) defines "marriage" as "a marital relationship
between husband and wife, legally recognized under the laws
of this state."

In OEC 505(2), which defines the scope of the mari-
tal communications privilege, the legislature used the adjec-
tive "any" to modify the phrase "confidential communica-
tion." Thus, the privilege applies to "any"-not to some-
"confidential communications," as long as those communica-
tions were made "during the marriage." Read together, those
provisions demonstrate that the legislature intended to
include within the protection of OEC 505(2) all confidential
communications between spouses made throughout the
entire course of the marriage, not merely communications
that would or could contribute to the "health" of the mar-
riage, as the state contends.

Moreover, in OEC 505(4), the legislature set out
three specific exceptions to the marital privileges, but did not
provide for any "marital health" exception. Under OEC
505(4), there is no privilege: (1) in criminal actions in which
one spouse is charged with an offense against the other; (2) as
to matters occurring before the marriage; or (3) in civil

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actions where the spouses are adverse parties.5 In our view,
the omission of a "marital health" exception in OEC 505(4) is
decisive. See ORS 174.010 (when construing statutes, court
may not insert what legislature omitted).

In sum, the plain wording of OEC 505 demonstrates
that the legislature intended the existence of a legal mar-
riage to establish the scope of the protection provided by the
marital communications privilege. Assuming that the party
asserting the privilege can establish that the other require-
ments of OEC 505 have been satisfied, the marital commu-
nications privilege in OEC 505(2) applies as long as the state-
ments were made while the marriage was legally intact.
Accordingly, we conclude that the trial court properly
declined to admit wife's testimony on that basis.

### C. Confidentiality of Marital Communications

#### 1. Spousal Intent Governing the Communications

We next consider whether, as the state contends, the
communicating spouse's intent governs the confidentiality of
a marital communication. To do so, we must consider the
meaning of the term "confidential communication" as it is
used in OEC 505(2). As noted, the legislature has defined
"confidential communication" in OEC 505(1)(a), which pro-
vides that, as used in OEC 505,

" '[c]onfidential communication' means a communication by
a spouse to the other spouse and not intended to be dis-
closed to any other person."

The state argues that the trial court erroneously
excluded the contested communications because they were
not "confidential communications" within the meaning of
OEC 505(1)(a) and, therefore, were not subject to the marital

5 OEC 505(4) provides:

"There is no privilege under this section:

"(a) In all criminal actions in which one spouse is charged with bigamy or
with an offense or attempted offense against the person or property of the other
spouse or of a child of either, or with an offense against the person or property
of a third person committed in the course of committing or attempting to com-
mit an offense against the other spouse;

"(b) As to matters occurring prior to the marriage; or

"(c) In any civil action where the spouses are adverse parties."

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communications privilege. Specifically, the state asserts that
the communicating spouse's intent governs the confidential-
ity of communications made between spouses and that nei-
ther defendant nor wife intended the communications at
issue to be confidential. The state alternatively argues that,
even if the contested communications were confidential, both
defendant and wife waived their privilege as to those com-
munications by disclosing the substance of the communica-
tions to others.

Defendant responds that the text and context of
OEC 505(1)(a) indicate that the legislature intended that the
intent of the spouse claiming the privilege-not the intent of
the communicating spouse-governs the privilege's applica-
tion. To support that assertion, defendant points out that
OEC 505(1)(a) is expressed in the passive voice and contains
no wording that limits its application to the communicating
spouse. Defendant relies on the context of Oregon's other evi-
dentiary privileges and the policy underlying the marital
privileges as further support. Defendant alternatively con-
tends that, even if the intent of the communicating spouse
governs confidentiality, the circumstances surrounding
the communications now at issue demonstrate that both
defendant and wife intended their communications to be
confidential.

As a preliminary matter, there is no question that
the notes and conversations at issue qualified as "communi-
cations" for purposes of OEC 505(2) and OEC 505(1)(a). Nei-
ther is there any question that the communications occurred
between spouses. The question is whether the communica-
tions were "confidential," that is, "not intended to be dis-
closed to any other person," OEC 505(1)(a). Because that per-
tinent part of OEC 505(1)(a) is written in the passive voice
and does not identify the actor, it is initially unclear whose
intent governs confidentiality for purposes of OEC 505(2):
that of the communicating spouse, the noncommunicating
spouse, or both spouses.

On at least one other occasion, this court has con-
cluded that the use of the passive voice in statutory text is
indicative of legislative intent. See State v. Pena, 345 Or 198,

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207, 191 P3d 659 (2008) (noting that use of passive voice indi-
cated that either lawyer or defendant could move for removal
of judge). Here, however, the relevant statutory provisions
and definitions shed no light on the question, and we do
not think that the use of the passive voice in OEC 505(1)(a)
necessarily reflects which spouse's intent governs con-
fidentiality.

For further guidance, we turn to Oregon's other priv-
ilege rules, which serve as pertinent context. The Oregon
Evidence Code establishes multiple evidentiary privileges
that also define and use the term "confidential communica-
tion," including the lawyer-client, psychotherapist-patient,
physician-patient, and clergy-penitent privileges. Although
the term is tailored in each instance to the context in which
those privileges may be invoked, the definitions are similar,
because each defines "confidential communication" in the
passive voice as a communication "not intended to be dis-
closed." Compare, e.g., OEC 503(1)(b) (lawyer-client privi-
lege); OEC 504(1)(a) (psychotherapist-patient privilege);
OEC 504-1(1)(a) (physician-patient privilege); OEC 506(1)(a)
(clergy-penitent privilege). In the psychotherapist-patient
privilege context, this court has looked to the speaker's intent
to determine whether a communication was intended to be
confidential. For example, this court previously has con-
cluded that the confidentiality of a patient's communication
to his psychotherapist is determined in light of the patient's
intent. State v. Miller, 300 Or 203, 210, 709 P2d 225 (1985),
cert den, 475 US 1141 (1986).

However, relying on this court's interpretations of
other privilege statutes is of limited value, because the other
privileges do not operate in the same manner as the marital
confidential communications privilege. Specifically, the cli-
ent, the patient, or the penitent alone holds the privilege
as to the lawyer-client, psychotherapist-patient, physician-
patient, and clergy-penitent privileges. See, e.g., OEC 503(2),
(3) (lawyer-client privilege); OEC 504(2), (3) (psychotherapist-
patient privilege); OEC 504-1(2), (3) (physician-patient priv-
ilege); OEC 506(2) (clergy-penitent privilege). Given the pro-
fessional context in which those privileges exist, it makes
sense that the client's intent controls whether a communica-
tion is confidential in those relationships. See Kirkpatrick,

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Oregon Evidence § 503.06[1] at 308 ("Whether the communi-
cation is confidential depends upon the intent of the client.").
By contrast, OEC 505(2) expressly provides that both spouses
hold the confidential communications privilege. Because the
text and context of OEC 505(1)(a) do not illuminate the pres-
ent inquiry, we turn to legislative history for additional guid-
ance. See Gaines, 346 Or at 171-72 (stating that court will
consult legislative history after examining text and context,
"even if [it] does not perceive an ambiguity in the statute's
text, where that legislative history appears useful to the
court's analysis").

The principal source of legislative history for the
1981 Oregon Evidence Code is the 1981 Conference Committee
Commentary. Although that Commentary is not an official
part of the Oregon Evidence Code, it nonetheless "provides
highly useful background regarding each rule and guidance
to courts and attorneys in interpreting these rules[.]" State v.
McClure, 298 Or 336, 344, 692 P2d 579 (1984); see also State
ex rel OHSU v. Haas, 325 Or 492, 506 n 10, 942 P2d 261
(1997) (examining Commentary as part of legislative history
analysis). According to the 1981 Conference Committee
Commentary to OEC 505(1)(a),

" '[confidential communication' is defined in terms of
intent. Intent may be inferred from the circumstances, e.g.,
the taking or failing to take of precautions. A communica-
tion made in public or meant to be relayed to outsiders can
scarcely be considered confidential. Unless intent to dis-
close is apparent, a communication between husband and
wife is confidential."

The Commentary thus instructs that communications
between spouses are presumed confidential unless the cir-
cumstances indicate that "intent to disclose is apparent." See
John W. Strong, McCormick on Evidence § 80, 330 (5th ed
1999) (stating that "[communications in private between
husband and wife are assumed to be confidential" and noting
circumstances that may strengthen or rebut a claim of
confidentiality).

In our view, the Commentary clarifies that the leg-
islature intended the communicating spouse's intent to gov-
ern confidentiality. That is so because, in most situations, the

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communicating spouse is the person making the communi-
cation and-at least, initially-is the spouse in a position to
assess the nature of the communication and to control the cir-
cumstances under which the communication is made. For
example, the communicating spouse controls the subject,
content, wording, language, and medium in which the com-
munication is made, whether the communication is made in
the presence of others, and the volume and intonation of his
or her voice. And, it is the communicating spouse who is in a
position to advise the noncommunicating spouse not to dis-
close the communication to others. Furthermore, such an
approach balances the underlying purpose of the evidentiary
privileges, which is to foster open communication, with the
truth-seeking function embodied in the evidentiary rules.6
We thus conclude that the legislature intended that the com-
municating spouse's intent governs the confidentiality of
communications between spouses because the communicat-
ing spouse has primary control over the circumstances in
which the communication itself is made.

Generally, the burden is on the party asserting the
privilege to establish that he or she is entitled to assert it and
that the communications that he or she seeks to exclude fall
within the scope of the privilege. See Groff v. S. I. A. C., 246
Or 557, 565, 426 P2d 738 (1967) (regarding assertion of priv-
ilege as to disclosure and use of public assistance records
under ORS 411.320). However, the Commentary indicates
that the legislature intended that communications made dur-
ing marriage be presumed confidential, unless intent to dis-
close is apparent from the circumstances.7 In light of that

6 We note that, in general, the evidentiary privileges-including the marital
privileges-are distinguishable from most other evidentiary rules in that they are
designed to limit the search for the truth, rather than facilitate its discovery.
Strong, McCormick on Evidence § 72 at 298-99. The resulting loss of relevant evi-
dence is tolerated to protect certain relationships that have been deemed suffi-
ciently important, such as the relationship between married persons, doctor and
patient, clergy and penitent, and attorney and client. Id. at 299. Generally speak-
ing, the purpose of the evidentiary privileges is to encourage open communication
between the persons in the protected relationship, which theoretically, in turn,
strengthens that relationship and encourages participation in such relationships.
Id. at 299-300.

7 Other authorities support the same presumption. See, e.g., Blau v. United
States, 340 US 332, 333, 71 S Ct 301, 95 L Ed 2d 306 (1951) ("[M]arital com-
munications are presumptively confidential."); Edward J. Imwinkelried, The
New Wigmore: Privileges § 6.8, 671-72 (2002) (citing authorities recognizing

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presumption, we conclude that defendant need only demon-
strate that he was married to wife and that a communication
with wife had occurred during the marriage. The burden of
persuasion then shifts to the proponent of the evidence-the
state, in this case-to rebut the claim of privilege by demon-
strating that the communicating spouse did not intend
the communication to be confidential. See State v. Clay,
332 Or 327, 332, 29 P3d 1011 (2001) (describing effect of
presumption).

Having concluded that the communicating spouse's
intent governs confidentiality and that a presumption of con-
fidentiality exists, we next consider the contested communi-
cations. The communications at issue here may be divided
into two groups for purposes of our analysis: those that
occurred before the murders, and those that occurred after
the murders. Communications that occurred before the mur-
ders include wife's notes to defendant and the telephone con-
versations between defendant and wife regarding her desire
for a divorce, her affair, and her pregnancy as a result of the
affair. The latter group of communications includes defen-
dant's statements to wife about heading into work, his
truck breaking down, losing his cell phone, and purchasing a
laptop computer. We address each group of communications
separately.

#### 2. Communications That Occurred Before the Murders

We review evidentiary rulings for errors of law. State
v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000). However, we
are bound by a trial court's factual findings, if the record con-
tains evidence to support them. Ball v. Gladden, 250 Or 485,
487, 443 P2d 621 (1968). If the trial court failed to articulate
a factual finding on a pertinent issue, we assume that the
trial court decided the facts "in a manner consistent with the
court's ultimate conclusions, as long as there is evidence in
the record, and inferences that reasonably may be drawn
from that evidence," that would support its conclusion. State
v. Juarez-Godinez, 326 Or 1, 7, 942 P2d 772 (1997).

presumption of confidentiality for spousal communications); 8 Wigmore, Evidence
§ 2336, 652 (1961) ("[A]ll marital communications should be presumed to be confi-
dential until the contrary appears.").

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We begin with wife's notes to defendant. The trial
court concluded that wife's notes were privileged because,
although the trial court found that wife had discussed with
others the subject matter of the notes, there was "no evidence
that either party discussed these communications, as
opposed to the subject matter of the communications, with
outsiders."

The state asserts that the notes were not privileged
because wife did not, at the time that she wrote them, intend
either the fact of the communications or the subject matter of
the communications to be confidential. The state argues that
evidence that wife told others about the subject matter of the
notes supports the conclusion that wife did not intend her
communications with defendant to be confidential. It also
argues that evidence that wife had discussed with others how
she should tell defendant about her desire for a divorce and
her affair demonstrates that she also did not intend the fact
of the communications themselves to be confidential.

As discussed, we presume that wife intended her
communications to defendant to be confidential. The record,
rather than rebutting that presumption, reinforces it. In par-
ticular, wife testified at the suppression hearing that she
intended both notes to be for defendant alone and that she
did not consult anyone in writing them. Furthermore, wife's
decision to leave notes for defendant in the family home,
where the most likely outcome would be that only defendant
would see them, permitted the trial court to infer an inten-
tion of confidentiality. And, although not dispositive in itself,
the subject matter of the notes was of an intimate nature.
Finally, the state offered no evidence to support a contrary
inference sufficient to overcome the presumption of confiden-
tiality that the rule creates.

As the state points out, wife told others about her
plans to leave defendant. By the time that wife left defendant
the first note, wife had told several people-including her
mother, sisters, friends, and coworkers-that she intended to
leave defendant. And, by the time that wife left defendant the
second note, she had told her sisters and her mother that she
had had an affair. Wife also testified that she had discussed

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with others how she should tell defendant about her desire
for a divorce and her affair.

In determining confidentiality, a court looks to the
communicating spouse's intent at the time that the commu-
nication was made. See OEC 505(1)(a) Commentary (1981)
(stating that intent may be inferred from the circumstances);
Inwinkelried, The New Wigmore: Privileges § 6.8 at 671 (stat-
ing that confidentiality inquiry focuses on the time of the
communication). The record supports the trial court's finding
that there was no evidence that wife had discussed with oth-
ers the existence of the notes themselves once she had left
them. Accordingly, the trial court did not err when it con-
cluded that wife's notes to defendant were confidential com-
munications protected by the marital communication privi-
lege set out in OEC 505(2).

We next consider whether defendant or wife waived
the privilege as to wife's notes. The state asserts that only
wife's waiver of the privilege was required because wife was
the privilege-holder as to her communications to defendant.
That argument contradicts the plain text of OEC 505(2),
which expressly states that "[t]he privilege created by this
subsection may be claimed by either spouse." Thus, the text
of OEC 505(2) compels a conclusion that the legislature
intended to permit either spouse to assert the marital com-
munications privilege as to "any confidential communication
made by one spouse to the other during the marriage." And,
as we already have discussed, the legislature's use of the
word "any" to modify the phrase "confidential communica-
tion" demonstrates that-excluding the express exceptions
listed in OEC 505(4)-the legislature intended to include
within the protection of OEC 505(2) all confidential commu-
nications between spouses. Under those provisions, both
spouses hold the privilege, and, therefore, both spouses must
waive the privilege for an otherwise privileged confidential
communications to be admissible.

As noted, a privilege-holder may waive his or her
privilege if he or she "voluntarily discloses or consents to dis-
closure of any significant part of the matter or communica-
tion." OEC 511. In Oregon Evidence, Kirkpatrick explains:

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"Only the communication is privileged, not the holder's
knowledge of the facts. Therefore, the holder may disclose
the facts to third persons without waiving the privilege. For
example, a client may speak freely to nonprivileged persons
about the facts of an automobile accident without waiving
the right to prevent the attorney from being questioned
regarding specific communications from client about that
accident."

Id. § 511.03[1] at 402-03.

However, even if one spouse has waived his or her
privilege of confidentiality, that choice cannot bind the other
spouse. Thus, the question whether wife waived her privilege
as to the notes when she discussed her desire for a divorce,
her affair, and her pregnancy with friends and family mem-
bers is largely irrelevant, because wife unquestionably
waived her privilege when she agreed to testify on the state's
behalf. As for defendant, however, we cannot conclude that
the trial court's findings are without basis in the record and
that defendant waived the privilege as to wife's notes.
Although defendant later spoke to Preciado about facts that
were included in the notes-for example, that wife wanted a
divorce-the record does not support an inference that defen-
dant told Preciado that wife had told him about those things
in two notes that she had left for him in the family home.
Because defendant merely disclosed the subject matter of the
notes, the record permitted the trial court to conclude that
the notes were privileged.

We next address the state's argument that wife did
not intend her side of the telephone conversations regarding
the notes that she left for defendant to be confidential. The
trial court determined that wife's side of the telephone con-
versations, which wife's sister had overheard, were not priv-
ileged. On appeal, both parties discuss wife's intentions
regarding her side of those telephone conversations. In sum,
the state argues that wife's side of the telephone conversa-
tions regarding the notes was admissible because wife had
discussed with others the subject matter of the notes. Defen-
dant disagrees. However, because the trial court ruled in the
state's favor on that issue, and defendant did not cross-
appeal or otherwise challenge that ruling, we do not address

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it. We therefore proceed to consider the communications that
occurred after the murders.8

#### 3. Communications That Occurred After the Murders

The state also argues that defendant's statements to
wife after the murders-about going into work, his truck
breaking down, losing his cell phone, and purchasing a laptop
computer-were not protected by the marital communica-
tions privilege because the circumstances at the time that
defendant made them do not demonstrate that he intended
them to be confidential. The state further argues that those
statements, by their nature, were not confidential because
they were "routine communications," related to the "business
of marriage." The trial court excluded those statements,
because it found that it was not apparent from the circum-
stances that defendant had intended them to be disclosed to
others. The trial court noted that defendant's intent was "a
close question," explaining that,

"[i]n most innocent circumstances, one would not infer an
intent to maintain confidentiality * * * from one spouse to
another regarding mechanical trouble or a lost cell phone.
However, these are not innocent circumstances. The state's
theory is that Mr. Serrano lied to his wife to cover up his
criminal tracks. One reasonable inference would be that he
intended that she repeat the statements to others to mis-
lead others as well. However, it is more reasonable to infer
that these communications were directed at misleading his
wife at the time and were not intended to incur the addi-
tional scrutiny that would result from their being repeated
to and questioned by others."

We again begin with the presumption that commu-
nications between spouses are confidential, unless the pro-
ponent of the evidence at issue establishes that the commu-
nicating spouse's intent to disclose is apparent from the
circumstances. Although the record does not reflect that
defendant expressly asked wife to keep his statements confi-
dential, it nevertheless shows that defendant made those

8 The trial court excluded defendant's side of the telephone conversations
regarding wife's notes, and neither party addresses that ruling on appeal. For that
reason, we also need not address any issues regarding defendant's side of those
conversations.

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statements directly to wife and outside the presence of oth-
ers. As the trial court found, these circumstances permit an
inference that defendant did not intend his statements to be
disclosed to others. Accordingly, the trial court did not err
when it concluded that the state had not overcome the pre-
sumption of confidentiality.

We also reject the state's argument that defendant's
statements were not confidential communications because
they pertained to "routine matters." Nothing in OEC 505(2)
suggests that conversations regarding "routine matters"
automatically should be excluded from the scope of the mar-
ital communications privilege. Rather, as we already have
discussed, the privilege extends to "any confidential commu-
nication" between spouses. OEC 505(2). Further, as we
already have noted, the subject matter of the communication
is but one aspect of the circumstances to be considered in
determining the communicating party's intent. The record
permits the trial court's conclusion that, when defendant
made the statements to wife, he did not intend them to be dis-
closed to others.

We next consider whether defendant later waived
the privilege as to his communications to wife after the mur-
ders. The trial court did not specifically address that issue in
its letter opinion. Rather, it stated that, except for wife's side
of the telephone conversations that had occurred before the
murders and several other communications that are not at
issue on appeal, "[a]ll the other communications are privi-
leged and [defendant] has not waived the privilege." The
state, for its part, contends that defendant waived the privi-
lege as to at least two of the communications that he had with
wife after the murders by discussing the subject matter of
those communications with Detective Hays.

Although the trial court's letter opinion contains no
findings about whether defendant waived the privilege as to
the communications in question that occurred after the mur-
ders, we assume that the trial court decided the facts consis-
tently with its ultimate conclusion, as long as the record con-
tains evidence to support it. Juarez-Godinez, 326 Or at 7.
During defendant's interview with Detective Hays on
November 28, 2006, defendant told Detective Hays that he

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had parked his truck a few blocks from his house because it
had broken down. He also told Detective Hays during that
interview that he had lost his cell phone while shopping at
WinCo. Although defendant clearly disclosed to Detective
Hays the subject matter of some of his earlier communica-
tions with wife, there is no evidence in the record that defen-
dant later disclosed to Detective Hays that he had told wife
about his truck breaking down and losing his cell phone.
Thus, defendant did not disclose to Detective Hays or anyone
else any part-much less "a significant part"-of his commu-
nications to wife. That evidence supports the trial court's ulti-
mate conclusion under OEC 505 that defendant did not
waive the marital communications privilege as to the com-
munications that he made to wife after the murders.

# III. CONCLUSION

In summary, wife's notes to defendant qualified as
confidential communications within the meaning of OEC
505(1)(a). Because the state presented no evidence to dem-
onstrate that defendant had waived the privilege as to those
communications, the notes are privileged under OEC 505(2).
Similarly, defendant's statements to wife about going into
work, his truck breaking down, losing his cell phone, and pur-
chasing a laptop computer also qualified as confidential com-
munications under OEC 505(1)(a). Because the state pre-
sented no evidence to show that defendant had waived the
privilege as to those communications, they too are privileged
under OEC 505(2).

The order of the circuit court is affirmed.